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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience:  I have been practising for 30 years.
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I own a piece of ground that is surrounded on three sides by

Resolved Question:

I own a piece of ground that is surrounded on three sides by other private land affording no access, the fourth side fronts onto the highway but the land is cut off by a mature hedgerow in conservation area. I have applied for planning permission for a 3m wide access to which the highway authority have no objection.
The Parish Council are trying to stop the access being implemented.
Do I have an automatic right to access the highway from the land?
Submitted: 2 months ago.
Category: Law
Expert:  F E Smith replied 2 months ago.

There is no automatic right vehicle access from the highway. On what grounds is the parish council objecting?

Customer: replied 2 months ago.
Parish Council latest objection can be found on: below shows latest correspondenceHi AlisonCan you let me know who your line manager is so I can copy them into any further emails?Clearly at this point we do not wish to go to the expense of providing bridges over streams and a turning head etc just so we can get onto the site and do general maintenance and tree surgery!We are merely trying to establish the principle of a safe access to the site, approved by highways, so that we can carry out the above works. As far as I am aware, this only requires us to have a site edged red that protrudes 15m into the site. Many road frontage dwellings on adopted roads have driveways that exit from the highway to parking in front of a dwelling, used on a daily basis. In this case the access will probably only be used a couple of times per year to allow contractor’s vehicles to reverse off the road, across the footpath and into the site to load and unload. For the remainder of the year, the access will remain closed and padlocked.The process you are describing below is total overkill for the use we require.RegardsSteveFrom: ***** ***** [mailto***@******.***]
Sent: 04 August 2016 10:02
To: ***** ***** <*****@******.***>
Subject: RE: New Access Long Compton 16/01923/FULDear *****,
Thank you for the additional information on this one however my recommendation is still one of refusal. Highways are only not objecting on the basis that there will be a turning area however this cannot be provided within the site area and would in any case have implications with regards ***** ***** tree removal and visual impact in the Conservation Area/ AONB. I am of the opinion that a fully justified scheme needs to be submitted with exact details of reasons for requiring the access, consideration of alternatives, access/ turning and implications with regards ***** ***** removal and associated visual impact.
I am not in the office today but the application is with my Manager for consideration and I will be back in tomorrow.
***** *****________________________________________
From: ***** ***** [mailto***@******.***]
Sent: 03 August 2016 13:45
To: ***** *****
Subject: New Access Long Compton 16/01923/FUL
Importance: HighHi Alison,I have read with some misgivings the Parish Council’s response to my perfectly reasonable explanation as to why we require an access to our land.In a recent Judgement in the highest Court in the land, (Cusack (Respondent) v London Borough of Harrow (Appellant) [2013] UKSC*****Judgment. JUSTICES: Lord Neuberger (President), Lord Mance, Lord Sumption, Lord Carnwath, Lord Hughes.) The following statement formed the starting point of the judgement:“The owner of a property adjoining a highway has a common law right of access to the highway, without restriction, from any part of his or her property”.The Parish Council’s latest response appears to be in conflict with this long-established (170 years) basic property right.Furthermore they seem to imply that there exists a historic right of access to the rear of the property over adjoining farmland – this is not the case.Access to the rear or sides of the property over private property does not exist, therefore we intend to implement our statutory right to connect to the highway in a safe and approved manner.The Parish Council’s concerns over any engineering works that may or may not be required are irrelevant to this planning application. Any works that are required will be covered by a future Section 278 application and agreed in advance with the Highway Authority (who have no objection to this application)The comments on flooding issues are also irrelevant to this planning application – the EA did not object to the previously refused application (which involved crossing the stream, where this does not) and I find their comments suggesting that the Local Lead Flood authority would condone the blocking of a watercourse as highly suspect.The comments are also incorrect in a number of other areas:1. The site is not a “nature reserve” – please see the ecology report which describes the site as “scrubby woodland” and was concluded to be “of limited wildlife interest”. Please also note the County Ecologist has raised no objection to the application.2. The site is not documented as a “green finger” in the NP – the number 8 green finger applies to the land to the rear of the property only, please see the map appended to the adopted NP.In short the PC’s strong objection has no basis in fact or in law.RegardsSteve
Customer: replied 2 months ago.
Over to you!
Expert:  F E Smith replied 2 months ago.

Thank you.

The highways department are only concerned about safety of vehicles coming in and going out. Hence, they have no concern over that which is why they have not objected. The council on the other hand whilst they will consider those safety issues are concerned about the removal of trees and the general effect on the local environment.

As I said earlier, there is no absolute right to vehicle access from Highway.

What you can do apart from the usual appeal and exchange of correspondence is tell them that if they steadfastly refuse this, you will have to consider making an application for judicial review.

Judicial review will be expensive if you lose but then again, it will also be expensive if they lose. Local authorities do not like defending applications for judicial review. You can only bring an application for judicial review on the basis that the decision of the Council was illegal irrational or had not complied with the character procedure for dealing with this there are no the grounds.

Even if you are successful and you get the judicial review order, it will not necessarily change the decision. It just makes the local authority revisit the way and the reasons behind the decision. The decision may remain the same.

It appears here that the decision is irrational because all the objections they have put forward don’t seem to hold water.

If you do not have the money to risk the judicial review, (you are potentially looking at a legal bill of £10,000 oto be paid by the user to the winner), then apart from arguing the toss and appealing the decision, you can make a formal complaint to the Local Government Ombudsman which fortunately is free.

Can I clarify anything for you?

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Best wishes.

F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience: I have been practising for 30 years.
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